FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
The intervention of the supporting judge may be requested by a party or the arbitral tribunal. The appli - cation is lodged by a writ of summons. An accelerated procedure will apply to this proceeding (Article 1460 of the French Civil Procedure Code). The judgment is normally not subject to appeal except for decisions on the nullity or manifest inapplicability of the arbitration agreement (Articles 1455 and 1460 of the French Civil Procedure Code). 4.4 Challenge and Removal of Arbitrators Pursuant to Article 1458 of the French Civil Proce - dure Code, an arbitrator can only be removed with the agreement of all the parties. However, when the parties cannot agree on the removal of an arbitrator, the dispute is settled by the arbitral institution or, in its absence, by the supporting judge, within one month of the disclosure or discovery of the contested fact (Article 1456 of the French Civil Procedure Code). Article 1456 notably states that an arbitrator can be challenged on the ground of a lack of independence or impartiality (see 4.5 Arbitrator Requirements ). 4.5 Arbitrator Requirements French arbitration law states that arbitrators must be independent and impartial, and requires them to disclose any circumstances likely to affect their inde - pendence or impartiality (Article 1456 of the of the French Civil Procedure Code). The requirement of independence and impartiality, as set out in Article 1456 of the French Civil Procedure Code, has been defined by case law as follows. • An arbitrator’s independence is assessed through an objective approach that consists of identify - ing precise and verifiable factors external to the arbitrator that are likely to affect their freedom of judgment, such as personal, professional and/or economic ties with one of the parties. • An arbitrator’s impartiality presupposes the absence of prejudices or biases likely to affect their judgment, which may result from multiple factors such as the arbitrator’s nationality, social, cultural or legal environment (Paris Court of Appeal, 2 May 2024, No 21/08610; Paris Court of Appeal, 23 April 2024, No 22/20058; Paris Court of Appeal, 8 June
2021, No 19/02245; Paris Court of Appeal, 4 May 2021, No 18/14593). An arbitrator’s lack of independence may result in setting aside of the award, notably on the grounds of improper constitution of the arbitration tribunal or violation of international public policy (Article 1520 (2) and (5) of the French Civil Procedure Code). Moreover, the arbitrator, before accepting their assign - ment, must disclose any circumstances likely to affect their independence or impartiality (Article 1456 (2) of the French Civil Procedure Code). This obligation lasts throughout the arbitration proceedings. Thus, the arbitrator must disclose without any delay any circumstances likely to affect their independence or impartiality that may arise after acceptance of the assignment. The scope of the disclosure obligation has been clari - fied by case law that considers that the arbitrator must reveal all circumstances likely to give rise to reason - able doubt in the minds of the parties as to the arbi - trator’s independence ( Cour de cassation , First Civil Chamber, 16 March 1999, No 96-12.748; Paris Court of Appeal, 22 February 2022, No 20/08929). This obligation of disclosure applies not only to rela - tions between the arbitrator and the parties, but also to the relations between the arbitrator and the parties’ lawyers or their law firms, whenever the facts consid - ered are likely to affect, in the minds of the parties, the arbitrator’s independence and impartiality. Moreover, the duty of arbitrators to disclose, and to provide information to enable the parties to exercise their right to challenge, must be assessed considering the notoriety of the situation criticised and its impact on the arbitrator’s judgment ( Cour de cassation , Sec - ond Civil Chamber, 25 March 1999, No 94-18.976; Paris Court of Appeal, 18 September 2018, No 16/26009; Paris Court of Appeal, 25 February 2020, No 19/07575; Paris Court of Appeal, 22 February 2022, No 20/08929). The main arbitration institutions also require arbitra - tors to be independent and impartial and contain a
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